IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION

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1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION CYNTHIA B. SCOTT, et al., ) ) Plaintiffs, ) ) Case No. 3:12-cv NKM v. ) Sr. Judge Norman K. Moon ) HAROLD W. CLARKE, et al., ) ) Defendants. ) ) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS PETITION FOR AWARD OF ATTORNEYS FEES AND LITIGATION COSTS PURSUANT TO 42 U.S.C Mary C. Bauer, VSB No Theodore A. Howard (admitted pro hac vice) Abigail Turner, VSB No WILEY REIN LLP Brenda E. Castañeda, VSB No K Street, NW Angela A. Ciolfi, VSB No Washington, DC Erin M. Trodden, VSB No (202) Ivy A. Finkenstadt, VSB No LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA (434) Deborah M. Golden (admitted pro hac vice) Elliot Mincberg D.C. PRISONERS PROJECT OF THE WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C (202) Attorneys for Plaintiffs Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 1 of 52 Pageid#: 4181

2 TABLE OF CONTENTS Page(s) Table of Authorities... iii INTRODUCTION...1 A. THE LITIGATION...1 B. THE SETTLEMENT AGREEMENT...2 GOVERNING LEGAL STANDARDS...3 ARGUMENT...6 I. THE PLAINTIFFS ARE PREVAILING PARTIES WITHIN THE CONTEMPLATION OF SECTION 1988 AND THE PLRA...6 II. THE DETERMINATION OF A REASONABLE FEE AWARD IS GOVERNED BY APPLICATION OF THE LODESTAR ANALYSIS...8 A. THE CAPPED RATE ON RECOVERABLE ATTORNEYS FEES IMPOSED BY THE PLRA IS $211.50/HR., WITH LESSER RATES FOR COMPENSABLE NON-LAWYER SUPPORT...11 B. THE HOURS EXPENDED BY PLAINTIFFS COUNSEL FOR WHICH AN AWARD IS SOUGHT WERE REASONABLY INCURRED Analysis of Johnson Factors The Litigation Tasks Performed Plaintiffs Counsels Time Charges...25 a. The Legal Aid Justice Center...26 b. The Washington Lawyers Committee...32 c. Wiley Rein LLP...34 C. THE LODESTAR AMOUNT OF $2,063, IS REASONABLE AND SHOULD NOT BE SUBJECT TO ANY DOWNWARD ADJUSTMENT...39 i Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 2 of 52 Pageid#: 4182

3 III. THE PLAINTIFFS DOCUMENTED AND REASONABLY-INCURRED LITIGATION COSTS IN THE AMOUNT OF $58, SHOULD BE INCLUDED IN THE COURT S AWARD...43 CONCLUSION...44 ii Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 3 of 52 Pageid#: 4183

4 TABLE OF AUTHORITIES Page(s) Cases In re Abrams & Abrams, P.A., 605 F.3d 238 (4th Cir. 2010)...39 Alexander S. v. Boyd, 113 F.3d 1373 (4th Cir. 1997)...4, 5, 7, 11 Arvinger v. Mayor and City Council of Baltimore, 31 F.3d 196 (4th Cir. 1994)...7 Barnard v. Piedmont Reg. Jail Auth., Case No. 3:07CV566, 2009 WL (E.D. Va. 2009)...40 Blake v. Maynard, Case No. 09-cv-2367-AW, 2013 WL (D. Md. July 11, 2013)...14 Blum v. Stenson, 464 U.S. 886 (1984)...8, 9 Buckhannon Board & Care Home, Inc. v. West Virginia Dep t of Health & Human Resources, 532 U.S. 598 (2001)...4 Clark v. Sims, 894 F. Supp. 868 (D. Md. 1995)...5 Cook v. Andrews, 7 F. Supp. 2d 733 (E.D. Va. 1988)...43 Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986)...43 Doe v. Chao, 435 F.3d 492 (4th Cir. 2006)...39 Duvall v. O Malley, Civ. Action No. ELH , 2014 WL (D. Md. April 7, 2014)...5 Eastern Assoc. Coal Corp. v. Director, OWCP, 724 F.3d 561 (4th Cir. 2013)...9, 10 Grissom v. The Mills Corp., 549 F.3d 313 (4th Cir. 2008)...9 iii Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 4 of 52 Pageid#: 4184

5 Hadix v. Johnson, 398 F.3d 863 (6th Cir. 2005)...13, 14 Hensley v. Eckerhart, 461 U.S.424 (1983)... passim Hernandez v. Kalinowski, 146 F.3d 196 (3d Cir. 1998)...13 Hudson v. Dennehy, 568 F. Supp. 2d 125 (D. Mass. 2008)...13 Ilick v. Miller, 68 F. Supp. 2d 1169 (D. Nev. 1999)...13 Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003)...13 Johnson v. Georgia Highway Express, Inc., 488 F.2d 14 (5th Cir. 1974)...15 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)... passim Laube v. Allen, 506 F. Supp. 2d 969 (M.D. Ala. 2007)...13 Lefemine v. Wideman, 758 F.3d 551 (4th Cir. 2014)... passim Lira v. Cate, No. C SI, 2010 WL (N.D. Cal. Feb. 26, 2010)...13 McAfee v. Boczar, 738 F.3d 81 (4th Cir. 2013)... passim McAfee v. Boczar, 906 F. Supp. 2d 484 (E.D. Va. 2012)...16, 17, 39 Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005)...4, 6, 9 Newport News Shipbuilding and Dry Dock Co. v. Holiday, 591 F.3d 219 (4th Cir. 2009)...9 Perdue v. Kenny A. ex rel Winn, 559 U.S. 542 (2010)... passim iv Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 5 of 52 Pageid#: 4185

6 Perez v. Cate, 632 F.3d 553 (9th Cir. 2011)...13 Robinson v. Equifax Information Servs., LLC, 560 F.3d 235 (4th Cir. 2009)...9 Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994)...9 Spell v. McDaniel, 852 F.2d Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002)...13 Statutes 18 U.S.C. 3006A(a) U.S.C. 3006A(d)(1) U.S.C. 1977e(d)(1)(A) U.S.C. 1981, 1981a U.S.C passim 42 U.S.C passim 42 U.S.C. 1988(b) U.S.C. 1997e U.S.C. 1997e(d)(1)(3) U.S.C. 1997e(d)(1)(B)(i) U.S.C. 1997e(d)(3)...13, 14 v Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 6 of 52 Pageid#: 4186

7 Plaintiffs Cynthia B. Scott, et al., by their attorneys, submit this Memorandum of Law in Support of their Petition for Award of Attorneys Fees and Litigation Costs Pursuant to 42 U.S.C INTRODUCTION AND STATEMENT OF THE CASE A. THE LITIGATION The Plaintiffs, prisoners residing at the Fluvanna Correctional Center for Women (FCCW), a facility of the Virginia Department of Corrections (VDOC), initiated this class-action lawsuit on July 24, 2012, pursuant to the Eighth Amendment to the Constitution of the United States and 42 U.S.C. 1983, seeking declaratory and injunctive relief with respect to alleged constitutionally-deficient medical care afforded to themselves and all other women residing at FCCW, which the Plaintiffs contend reflects deliberate indifference on the part of the VDOC Defendants to the Plaintiffs serious medical needs. The VDOC Defendants have consistently denied liability for the alleged constitutional violations. By Memorandum Opinion and Order dated November 20, 2014, the Court granted the Plaintiffs Motion for Class Certification and certified a class consisting of all women who currently reside or will in the future reside at FCCW and have sought, are currently seeking or will seek adequate, appropriate medical care for serious medical needs, as contemplated by the Eighth Amendment to the U.S. Constitution, pursuant to Fed. R. Civ. P. 23(b)(2). (ECF Dkt. No. 188). Thereafter, the Court entered an Order granting Partial Summary Judgment in favor of the Plaintiffs and denying the VDOC Defendants Motion for Summary Judgment in its entirety on November 25, 2014, holding, inter alia, that: 1. the Plaintiffs established, as a matter of law, that they fully and properly exhausted all pre-litigation administrative remedies available to them, as required by applicable provisions of the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e (see Memorandum Opinion dated November 25, 2014, at & nn.8-10 (ECF Dkt. No. 201)); Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 7 of 52 Pageid#: 4187

8 2. the Plaintiffs established, as a matter of law, that individually and as a class, they suffer from serious medical needs as a predicate to a viable cause of action for deliberate indifference under the Eighth Amendment (id. at & n.7); 3. the Plaintiffs established, as a matter of law, that the VDOC Defendants have a non-delegable duty under the Eighth Amendment to provide constitutionally-adequate medical care to all prisoners within their custody, including the Plaintiffs (id. at 8-13); and that 4. the VDOC Defendants failed, as a matter of law, to demonstrate on the basis of material facts as to which there is no genuine issue in dispute, that they could not be found liable for providing insufficient medical care, or failing to provide medical care under circumstances in which such care was due, reflecting deliberate indifference to the Plaintiffs and the class members serious medical needs in violation of the Eighth Amendment (id. at 33-46). B. THE SETTLEMENT AGREEMENT Against the backdrop of this Court s rulings granting class certification and the Plaintiffs Motion for Partial Summary Judgment and denying the Defendants Motion for Summary Judgment, and with a December 1, 2014 trial date looming, the parties conducted settlement negotiations. Those negotiations culminated in their execution of a Memorandum of Understanding which set forth agreed-upon terms for a comprehensive resolution of this case. Thereafter, the parties respective counsel and medical consultants and representatives of the VDOC engaged in extensive communications, further negotiations and other activities focused upon performance and implementation of the various measures described in the Memorandum of Understanding as required in order to achieve the terms of the Settlement Agreement to which they had agreed in principle. Upon their completion of this process, the Plaintiffs, subject to the Defendants express consent, presented their Settlement Agreement to this Court for its preliminary approval on September 15, See ECF Dkt. Nos. 220, 221 & Exhibit 1thereto. Under the final terms and conditions of the Settlement Agreement, the Defendants have undertaken or agreed to undertake a host of measures that are designed to insure that the medical 2 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 8 of 52 Pageid#: 4188

9 care afforded to the Plaintiffs and other Class members residing at FCCW shall meet or exceed constitutional standards under the Eighth Amendment by, inter alia: adoption and implementation of revisions to existing VDOC Operating Procedures governing or relating to the provision of medical care at FCCW in order to enhance the quality and quantity of care; commitment to adhere to specific Guidelines and Standards beyond the VDOC Operating Procedures, as set forth in the Settlement Agreement, in order to maximize the prospects for provision of a constitutionallyadequate level of medical care at FCCW; commitment to work cooperatively with the Plaintiffs counsel and medical consultant on the development of new Operating Procedures designed to assure the VDOC s fulfillment of its legal obligations to women with disabilities under the Americans With Disabilities Act and to provide the VDCO with a basis for self-evaluation of its own performance in providing medical care at FCCW on an on-going basis in accordance with well-established Continuous Quality Improvement principles; and commitment to submit the quality and quantity of the medical care provided at FCCW to the critical oversight of a Compliance Monitor agreed upon by the parties, who will develop Performance Measuring Tools to be utilized in performing his periodic evaluations, subject to the continuing supervisory jurisdiction and sanctioning authority of this Court for any persisting or new constitutional violations. In addition to the foregoing, the Defendants agreed that the Plaintiffs are prevailing parties in this litigation, in light of the terms of the Settlement Agreement reached, and that, as such, the Plaintiffs are entitled to the recovery of the reasonable attorneys fees and litigation costs they have incurred, pursuant to 42 U.S.C See ECF Dkt. No. 221, Exh. 1, Sec. VII at GOVERNING LEGAL STANDARDS Under the Civil Rights Attorney s Fees Awards Act of 1976, Congress has authorized the award of reasonable attorneys fees to prevailing parties in certain civil rights cases, including actions successfully pursued and resolved under 42 U.S.C See 42 U.S.C. 1988(b) ( In any action or proceeding to enforce a provision of [42 U.S.C. 1983], the court, in its discretion, 3 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 9 of 52 Pageid#: 4189

10 may allow the prevailing party, other than the United States, a reasonable attorney s fee as part of the costs[.] ); see generally Lefemine v. Wideman, 758 F.3d 551, 555 (4 th Cir. 2014); Mercer v. Duke University, 401 F.3d 199, (4 th Cir. 2005). A plaintiff in a Section 1983 action prevails for purposes of meriting a fee award under Section 1988 when actual relief on the merits of [her] clam materially alters the legal relationship between the parties by modifying the defendant s behavior in a way that directly benefits the plaintiff. Mercer, 401 F.3d at 203, citing Farrar v. Hobby, 506 U.S. 103, (1992). This material alteration may result either from the entry of a judgment on the merits favorable to the plaintiff or through a settlement agreement on terms favorable to the plaintiff that is enforced by the court through a consent decree. Buckhannon Board & Care Home, Inc. v. West Virginia Dep t of Health & Human Resources, 532 U.S. 598, 604 (2001) ( Although a consent decree does not always include an admission of liability by the defendant, it nonetheless is a court-ordered chang[e] [in] the legal relationship between [the plaintiff] and the defendant.... [E]nforceable judgments on merits and court-ordered consent decrees create the material alteration of the legal relationship of the parties necessary to permit an award of attorneys fees. (Citations omitted.)); Hensley v. Eckerhart, 461 U.S.424, 433 (1983) ( A typical formulation is that plaintiffs may be considered prevailing parties if they succeed on any significant issue in litigation which achieves some of the benefit [they] sought in bringing suit. (Citation omitted.)); accord Alexander S. v. Boyd, 113 F.3d 1373, (4th Cir. 1997) (same). Finally, although Section 1988 by its terms invests the district court with discretion to determine whether attorneys fees should be awarded to a successful plaintiff in a Section 1983 action, the courts have emphasized that the discretion to deny a fee award is exceeding narrow. The purpose of 1988 is to ensure effective access to the judicial process for persons with civil rights grievances. H.R. Rep. No , p. 1 (1976). 4 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 10 of 52 Pageid#: 4190

11 Accordingly, a prevailing plaintiff should ordinarily recover an attorney s fee unless special circumstances would render such an award unjust. S. Rep. No , p.4 (1976) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). Hensley, 461 U.S. at 429 (footnote omitted); accord Lefemine v. Wideman, 758 F.3d at 555 ( Courts have universally recognized that [the] special circumstances exception is very narrowly limited. (quoting Dee v. Bd. Of Educ. Of Baltimore City, 165 F.3d 260, 264 (4 th Cir. 1998)); Clark v. Sims, 894 F. Supp. 868, 870 (D. Md. 1995) ( The district court has limited discretion in not awarding fees to a prevailing party. ). In Section 1983 actions involving prisoners rights, a prevailing party for purposes of Section 1988 must also satisfy additional requirements imposed by the Prison Litigation Reform Act before fees may be awarded. Alexander S., 113 F.3d at 1380 ( [T]he PLRA... restricts the availability and the amount of attorney s fees recoverable by prisoners under 42 U.S.C. 1988[.] ); Duvall v. O Malley, Civ. Action No. ELH , 2014 WL , at *8 (D. Md. April 7, 2014) ( In prison litigation, prevailing parties under 42 U.S.C must satisfy additional requirements before becoming entitled to attorney s fees. ). Specifically, 42 U.S.C. 1977e(d) of the PLRA provides, in pertinent part, as follows: (d) Attorneys Fees (1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney s fees are authorized under [42 U.S.C. 1988], such fees shall not be awarded, except to the extent that (A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff s rights protected by a statute pursuant to which a fee may be awarded under [Section 1988], and (B)(i) the amount of the fee is proportionately related to the courtordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. 5 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 11 of 52 Pageid#: 4191

12 * * * (3) No award of attorney s fees in an action described in paragraph (1) should be based on an hourly rate greater than 150 percent of the hourly rate established under [S]ection 3006A of title 18, United States Code, for payment of court-appointed counsel. 42 U.S.C. 1997e(d)(1)(3). 1 Under these provisions, the Plaintiffs, as prevailing parties for purposes of Section 1988, must further demonstrate that the fees as to which an award is sought were incurred in vindicating their constitutional claim on the merits, and that the amount requested is proportional to the degree of relief obtained via favorable judgment or settlement. ARGUMENT I. THE PLAINTIFFS ARE PREVAILING PARTIES WITHIN THE CONTEMPLATION OF SECTION 1988 AND THE PLRA As described above, the terms of the Settlement Agreement between the Plaintiffs and the VDOC Defendants unquestionably reflect a material alteration of the legal relationship between the parties in a way that directly benefits the Plaintiffs. Mercer, 401 F.3d at 203. The VDOC has agreed to revisions to its existing Operating Procedures governing or relating to the provision of medical care at FCCW in a manner designed to enhance the quality of the medical care provided pursuant to those Procedures. It has agreed to adhere to additional Guidelines and Standards in the provision of medical care at FCCW beyond its own Operating Procedures, with the objective of maximizing the prospects for achieving a level of care that meets or exceeds constitutional minimum standards under the Eighth Amendment. It has agreed to work cooperatively with the Plaintiffs representatives to develop new Operating Procedures focused upon Americans With Disabilities Act compliance at FCCW and Continuous Quality 1 Cf. Memorandum Opinion, entered April 15, 2014, at 5-6 (ECF Dkt. No. 109) (recognizing the limitations imposed by the PLRA upon the magnitude of attorneys fees awards under Section 1988 following the entry of a judgment or approval of a settlement favorable to prisoner plaintiffs on the merits, but holding these limitations inapplicable to fees awarded as discovery sanctions). 6 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 12 of 52 Pageid#: 4192

13 Improvement principles to improve the quality of medical care at FCCW on an on-going basis. And the VDOC has agreed that during the effective period of the Settlement Agreement (a minimum of three years from the date it is approved), its provision of medical care at FCCW shall be subject to the periodic critical review and evaluation of a Compliance Monitor selected by the parties, and that deficiencies in its performance of constitutional magnitude, as identified by the Monitor or independently by the Plaintiffs and their counsel, may be made the focus of proceedings in this Court seeking specific performance of the Settlement Agreement, contempt sanctions, or both. These measures, in very substantial ways, significantly change the legal relationship between the VDOC and the class of Plaintiffs residing at FCCW in a manner that should materially improve the medical care provided at the Prison and the Plaintiffs overall quality of life as incarcerated persons. As a result, through the parties Settlement Agreement, the Plaintiffs have unquestionably succeeded on significant issues in this litigation, thereby achieving the benefits they sought in bringing this lawsuit. As such, the Plaintiffs status as prevailing parties in this action is clearly established. Hensley, 461 U.S. at 433; see generally Alexander S., 113 F.3d at 1390; Arvinger v. Mayor and City Council of Baltimore, 31 F.3d 196, 200 (4 th Cir. 1994). As noted above, the VDOC Defendants have conceded that the Plaintiffs constitute prevailing parties under the Settlement Agreement for purposes of Section Moreover, no special circumstances are present in this case that would render an award of attorneys fees and costs to the Plaintiffs under Section 1988 unjust. Hensley, 461 U.S. at 429; Lefemine, 758 F.3d at Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 13 of 52 Pageid#: 4193

14 In addition, with respect to PLRA requirements, the Settlement Agreement provides, in pertinent part, as follows: The Parties hereby stipulate, and request that the Court, upon independent review and consideration, find that this Settlement Agreement complies with the Prison Litigation Reform Act. The Parties agree that the prospective relief established by this Settlement Agreement is narrowly drawn, extends no further than is necessary to address the violations of federal rights alleged by the Plaintiffs in their pleadings in this action, is the least intrusive means necessary to correct these alleged violations, and will not have any adverse impact on public safety or the operation of the criminal justice system. ECF Dkt. No. 221, Exh. 1, Sec. VIII at 27 (emphasis added). This language reflects the Parties consensus that the Plaintiffs attorneys fees were incurred in proving an actual violation of [their] rights protected by a statute under which fees may be awarded under [Section 1988]. See 42 U.S.C. 1977e(d)(1)(A). 2 Accordingly, all the requirements that must be met to qualify the Plaintiffs as prevailing parties entitled to a fee award in this case are satisfied. II. THE DETERMINATION OF A REASONABLE FEE AWARD IS GOVERNED BY APPLICATION OF THE LODESTAR ANALYSIS In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court of the United States declared that [t]he most useful starting point in determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of the lawyer s services. Id. at 433; see also Blum v. Stenson, 464 U.S. 886, 888 (1984) ( The initial estimate of a reasonably attorney s fee is properly calculated by multiplying the 2 The proportionality of the fee award sought to the relief obtained by the Plaintiffs under the terms of the Settlement Agreement -- see 42 U.S.C. 1997e(d)(1)(B)(i) -- will be addressed below. 8 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 14 of 52 Pageid#: 4194

15 number of hours reasonably expended... times a reasonable hourly rate. Adjustments to that fee then may be made as necessary in the particular case. (Citation omitted.)). Following Hensley and Blum, the Fourth Circuit has repeatedly applied this lodestar methodology in reviewing the reasonableness of fee awards entered by district courts in a host of cases brought pursuant to federal statutes expressly providing that a prevailing party may be awarded the fees its counsel reasonably incurred in successfully representing that party s interests in the subject litigation. See, e.g., Lefemine, 758 F.3d at 559 n.4; McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013); Eastern Assoc. Coal Corp. v. Director, OWCP, 724 F.3d 561, (4th Cir. 2013); Newport News Shipbuilding and Dry Dock Co. v. Holiday, 591 F.3d 219, (4th Cir. 2009); Robinson v. Equifax Information Servs., LLC, 560 F.3d 235, (4th Cir. 2009); Grissom v. The Mills Corp., 549 F.3d 313, (4th Cir. 2008); Mercer, 401 F.3d at 209; Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, (4th Cir. 1994). Moreover, as a guide to aid the lower courts in performing the lodestar analysis to determine the measure of reasonable attorneys fees in those cases in which they may be awarded, the Fourth Circuit has instructed district judges to consider the following twelve factors originally identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974): (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys fees awards in similar cases. Robinson, 560 F.3d at , citing Barber v. Kimbrell s, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978); see also Grissom, 549 F.3d at ( Here, the parties agree that in calculating an 9 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 15 of 52 Pageid#: 4195

16 appropriate attorneys fee award, a district court must first determine the lodestar amount (reasonable hourly rate multiplied by hours reasonably expended), applying the Johnson/Barber factors when making its lodestar determination. (Citations omitted.)). 3 Once it is determined that the hours incurred and the hourly rate requested by the prevailing party s attorneys are reasonable, the Court is obligated to subtract fees for hours spent on unsuccessful claims unrelated to the successful ones. McAfee, 738 F.3d at 91, citing Grissom, 549 F.3d at 321 ( The parties agree that after calculating the lodestar figure, the court then should subtract fees for hours spent on unsuccessful claims unrelated to successful ones. (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)). And finally, after deductions for fees associated with unsuccessful and unrelated claims, the Court then awards all or a percentage of the remaining lodestar amount, depending on the degree of success enjoyed by the prevailing party. Id. Accordingly, based on the foregoing authorities, this Court s task in determining the reasonable attorneys fees the Plaintiffs should be awarded turns on performance of the following analytical steps: (i) evaluation of the hourly rates claimed by Plaintiffs in light of the prevailing market rate in the relevant geographic jurisdiction for legal services of the type performed by counsel on Plaintiffs behalf, including consideration of any pertinent Johnson factors, to determine the reasonable hourly rate to be utilized in the lodestar calculation; 3 To the extent that any one of the Johnson factors is taken into account in determining and/or effectively duplicates either of the lodestar elements (e.g., hours reasonably expended is essentially the same as Johnson factor No. 1 ( the time and labor expended ) and is also necessarily a function of Johnson factor No. 2 ( the novelty and difficulty of the questions raised )), such factors may not be double-counted by using them as a basis to adjust the lodestar figure further after it has been determined. See Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 553 (2010); McAfee, 738 F.3d at 89; Eastern Assoc. Coal, 724 F.3d at 570 & n Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 16 of 52 Pageid#: 4196

17 (ii) evaluation of the time charges claimed by Plaintiffs in light of the nature and extent of the tasks performed, including consideration of any pertinent Johnson factors, to determine the number of hours reasonably expended; (iii) performance of the lodestar calculation; (iv) deduction from the lodestar amount of any fees specifically attributable to hours devoted to unsuccessful claims distinct from the successful ones; and (v) determination of whether any other adjustments are necessary or appropriate under the particular circumstances of the case in light of the overall level of success the prevailing party achieved. Plaintiffs address each of these steps below. A. THE CAPPED RATE ON RECOVERABLE ATTORNEYS FEES IMPOSED BY THE PLRA IS $211.50/HR., WITH LESSER RATES FOR COMPENSABLE NON-LAWYER SUPPORT Under the provisions of the PLRA set forth above, the Court must undertake a three-step process in order to determine the hourly rate to utilize for purposes of its lodestar calculations to arrive at an appropriate fee award. First, the Court must refer to the rate established by the Criminal Justice Act, 18 U.S.C. 3006A (CJA), for payment of court-appointed counsel under the provisions of that statute. Then the Court must identify an amount constituting 150% of the applicable CJA rate to derive the maximum rate allowable under the PLRA. Finally, the Court must then compare the PLRA-capped rate against the hourly rate reasonably recoverable by the prevailing party s attorneys in the absence of the PLRA s limitation in order to determine whether the PLRA rate or some lesser rate should apply. See Alexander S., 113 F.3d at 1388 (describing methodology). The CJA, enacted in 1964, requires every federal district court, subject to the approval of the judicial council for the circuit in which the district court is located, to afford legal representation to criminal defendants without the financial wherewithal to hire an attorney for themselves. 18 U.S.C. 3006A(a). The statute empowers the U.S. Judicial Conference to 11 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 17 of 52 Pageid#: 4197

18 establish the maximum hourly rate that shall be paid to counsel appointed to represent an indigent criminal defendant thereunder. Specifically, it states that [a]ny attorney appointed pursuant to this section [shall] be compensated at a rate not exceeding $60 per hour for time expended in court... unless the Judicial Conference determines that a higher rate of not in excess of $75 per hour is justified for a circuit or for particular districts within a circuit. See Section 3006A(d)(1). The Act also allows the U.S. Judicial Conference to increase the maximum hourly rate to an amount in excess of $75 per hour, utilizing a complex formula described in the statute. Id. Commencing in September 2000, 4 and gradually at various intervals thereafter up to the present, the U.S. Judicial Conference, employing the formula set forth in Section 3006(a)(d)(1), has increased the maximum hourly rate payable to court-appointed counsel under the CJA. The maximum hourly rate established by the Judicial Conference for the time period 2011 to 2014 was $141.00, and for 2015 increased to $ Because this action was initiated in July 2012 and the parties reached their agreement in principle regarding settlement in November 2014, the Plaintiffs submit that it is appropriate for the Court to utilize the rate of $141.00, the maximum authorized statutory rate under the CJA as determined by the U.S. Judicial Conference for the time period, as the CJA rate applicable for purposes of its determination under the PLRA here. 4 See Report of the Proceedings of the Judicial Conference of the United States, September 9, 2000, at 50 (see true and correct copy attached as Exhibit 4 to the Declaration of Theodore A. Howard, dated October 19, 2015 ( Howard Dec. ). 5 See U.S. Judicial Conference 2011 Budget Statement to Congress at 13 (reflecting Judicial Conference s request to Congress for funding in accordance with maximum statutory rate of $141.00). See also U.S. Jud. Conf Budget Justification to Congress at 6.15 (noting that CJA statutory maximum rate remained $ for fiscal year 2014); U.S. Jud. Conf Budget Justification to Congress at 6.14 (referencing fiscal year 2015 statutory maximum rate of $142.00) (see Howard Dec., Exh. 4). 12 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 18 of 52 Pageid#: 4198

19 Although the Plaintiffs acknowledge the existence of some disagreement among the federal courts in regard to this issue, they submit -- consistent with the plain language of 42 U.S.C. 1997e(d)(3) and 18 U.S.C. 3006A(d)(1), when the two provisions are read in harmony with one another -- that the maximum statutory hourly rate authorized by the Judicial Conference, not the lower rate actually paid to CJA attorneys in a given district or funded by Congress at particular points in time, serves as the basis for computing the PLRA capped rate. Hadix v. Johnson, 398 F.3d 863, 867 (6th Cir. 2005) (holding that attorney fees under the PLRA should be based on the hourly rate for court-appointed counsel that is authorized by the Judicial Conference, rather than on the rate that is actually paid to such counsel ); see generally Perez v. Cate, 632 F.3d 553, & n.1 (9th Cir. 2011); Johnson v. Daley, 339 F.3d 582, (7th Cir. 2003); Webb v. Ada County, 285 F.3d 829, 839 (9th Cir. 2002); Lira v. Cate, No. C SI, 2010 WL , at *4 (N.D. Cal. Feb. 26, 2010); Hudson v. Dennehy, 568 F. Supp. 2d 125, (D. Mass. 2008); Laube v. Allen, 506 F. Supp. 2d 969, 987 (M.D. Ala. 2007); Ilick v. Miller, 68 F. Supp. 2d 1169, (D. Nev. 1999); but see Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir. 1998) (PLRA capped rate must be based upon CJA rate actually paid, not the rate set by the Judicial Conference). As was cogently articulated by the Sixth Circuit in this regard in Hadix: [18 U.S.C. 3006A] authorizes the Judicial Conference to establish reasonable rates of compensation for court-appointed counsel[.] U.S.C. 3006A(d)(1) (West Supp. 2004). The statute contains no reference to congressional appropriations or to rates that are actually paid to court-appointed counsel. 398 F.3d at 876 (emphasis added); see also Laube, 506 F. Supp. 2d at 987 ( Where the PLRA refers to the hourly rate established by 3006A, that section s unambiguous delegation of authority to the Judicial Conference to raise the rate, without any reservation by Congress of the obligation to approve it, means that the Judicial Conference s rate is controlling in PLRA 13 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 19 of 52 Pageid#: 4199

20 cases. ). Moreover, the Court in Hadix also articulated a practical rationale for utilization of the Judicial Conference-authorized rate, observing as follows: [I]n the absence of express statutory language, there is no inherent reason why attorneys fees under the PLRA should be limited by the amount budgeted [by Congress] to pay court-appointed counsel under the CJA. Attorney fee awards in prisoner civil rights litigation are paid from the pockets of unsuccessful defendants whether they be private individuals or governmental entities; such fees are not paid from funds set aside by Congress to compensate court-appointed counsel under the CJA. There is no logical reason to limit fee awards in such cases to the amount of money set aside to fund the CJA. 398 F.3d at 867 (emphasis added). Accordingly, the weight of relevant and better-reasoned authority clearly looks to the rate authorized by the Judicial Conference as appropriate for the compensation of CJA counsel as the base for purposes of determining the PLRA capped rate. As shown above, in the time period during which litigation in the instant case predominantly occurred, the Judicial Conferenceauthorized rate was $ See supra at 12 & n.5; Howard Declaration, Exh. 4. Thus, under the PLRA, 42 U.S.C. 1997e(d)(3), this Court s award of fees to Plaintiffs as the prevailing parties under Section 1988 may not exceed 150% of $141.00, the maximum statutory rate established by the CJA, or $ per hour. By comparison, the Declarations submitted in support of the Petition by the attorneys providing representation to the Plaintiffs in this action uniformly reference reasonable hourly rates that, in every instance, substantially exceed the PLRA-capped rate of $ Accordingly, this Court should apply $ as the hourly rate to be utilized for purposes of multiplication by the number of hours reasonably incurred by all of Plaintiffs counsel to determine a reasonable fee award under the governing lodestar analysis. See, e.g., Blake v. Maynard, Case No. 09-cv-2367-AW, 2013 WL , at 6 See Howard Dec., at 6-14 (Wiley Rein rates); id., Exh. 5 (LAJC Declarations and rates); id., Exh. 6 (WLC Declaration and rates). 14 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 20 of 52 Pageid#: 4200

21 *1-2 (D. Md. July 11, 2013) (applying then-applicable PLRA-capped maximum hourly rate of $ to all hours accrued by plaintiff s counsel where all of their respective individual hourly rates exceeded the PLRA rate). 7 B. THE HOURS EXPENDED BY PLAINTIFFS COUNSEL FOR WHICH AN AWARD IS SOUGHT WERE REASONABLY INCURRED 1. Analysis Of Johnson Factors Fourth Circuit jurisprudence has been clear and consistent on the point that at the stage at which the Court determines the reasonableness of the hours expended by the prevailing party s counsel for which a recovery of fees is requested, the Court must undertake analysis of the Johnson factors in assessing the suitability of the time charges at issue to serve as the basis for reimbursement. See McAfee, 738 F.3d at 88 ( To ascertain what is reasonable in terms of hours expended... the court is bound to apply the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 14, (5th Cir. 1974). (Footnote omitted.)). And, as noted above, Johnson factors that are effectively subsumed by the process of determining the hours reasonably incurred for which a fee award is sought generally should not be taken into account more than once. See supra Arg. Section II at 10 n.3 (citing authorities). 7 In its Memorandum Opinion with respect to awarding of fees to the Plaintiffs incurred in the preparation and submission of a successful Motion to Compel Discovery from the VDOC Defendants, this Court, in dictum addressing the VDOC Defendants erroneous argument that the PLRA should cap the hourly rate on fees awardable to the Plaintiffs as a discovery sanction, observed that under the PLRA, the maximum hourly rate for the Plaintiffs lead counsel was $ (i.e., 150% of $125.00). See Mem. Opinion, dated April 15, 2014, at 5 (ECF Dkt. No. 109) ( Were the PLRA applicable, Theodore Howard s rate would be capped at $187.50[.] ). The Plaintiffs respectfully submit that because this determination was not based upon the Judicial Conference-authorized maximum hourly rate under the CJA of $ in effect at that time, the Court s conclusion in this regard, which it simply adopted without independent analysis from the VDOC Defendants misguided Opposition Memorandum, was incorrect. 15 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 21 of 52 Pageid#: 4201

22 On this latter point, the Fourth Circuit, in its recent decision in the McAfee case, based upon an analysis of the substance and implications of Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), endorsed a modified treatment of the Johnson factors articulated by the district court in the case before it for review. See 783 F.3d at 89, citing McAfee v. Boczar, 906 F. Supp. 2d 484, (E.D. Va. 2012). The district court s decision in McAfee (Payne, Sr. Dist. Judge) noted that in Perdue, the Supreme Court -- in a departure from its prior analysis in Hensley, indicating that the 12-part Johnson analysis was a tool to be utilized to inform the lodestar calculation, see 461 U.S. at 434 n.9 -- presented the Johnson analysis and the lodestar methodology as distinct alternative approaches to determining reasonable attorneys fees, and expressed its clear preference for the lodestar approach, noting that the Johnson approach gave very little actual guidance to district courts. Setting attorney s fees by reference to sometimes subjective factors placed unlimited discretion in trial judges and produced disparate results. Perdue, 559 U.S. at 551 (citations omitted). Based on this analysis, Judge Payne concluded in McAfee that the necessary consequence of Perdue is that the Johnson approach ha[s] been relegated to the sidelines in fee analysis. 906 F. Supp. 2d at 491. Elaborating on this concept, the Court stated: What then is left of Johnson after Perdue? That question is best answered by assessing the individual Johnson factors to determine if they are subsumed in the lodestar calculus. The reasonableness of the rate implicates, it seems, Factor [3] (the skill required to properly perform the legal services rendered); Factor 5 (the customary fee); Factor 6 (the attorney s expectation at the outset of the litigation, i.e., whether the fee is fixed or contingent); Factor 9 (the experience, reputation and ability of the attorney); and Factor 4 (the attorney s opportunity cost in pressing the instant litigation). In one way or another, those factors play a role in determination of a reasonable hourly rate, just as they do in a law firm s rat[e] setting process.... The assessment of the number of hours reasonably expended implicates Factor 1 (the time and labor expended); Factor 2 (the novelty and difficulty of the questions raised); and Factor 7 (the time limitations imposed by the client or the 16 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 22 of 52 Pageid#: 4202

23 circumstances). Each of those factors rather obviously bears on the time that reasonably should be devoted to a case. That leaves four Johnson factors: Factor 8 (the amount in controversy and the results obtained); Factor 10 (the undesirability of the case within the legal community within which the case arose); Factor 11 (the nature and length of the professional relationship between the attorney and the client); and Factor 13 (attorney s fees awards in similar cases). Id. at The Fourth Circuit adopted the district court s analysis in this regard in its entirety. See 738 F.3d at 89 ( Ultimately, pursuant to the court s lodestar analysis, Perdue reserved four Johnson factors for use in adjusting the lodestar fee amount: [Factors 8, 10, 11 and 12]. (Citation omitted.)). Accordingly, in light of McAfee, the impact -- if any -- of Johnson Factors 8, 10, 11 and 12 will be considered after the reasonableness of the hours expended by Plaintiffs counsel is addressed, and multiplied by the applicable PLRA-capped hourly rate, below to arrive at the lodestar amount. 2. The Litigation Tasks Performed Commencing in late 2008, the Plaintiffs counsel convened and began discussing a strategic approach to the comprehensive due-diligence factual investigation that was needed regarding voluminous complaints of sub-standard medical care being provided to the prisoner population at FCCW. In the Spring of 2009, prospective Plaintiffs and witnesses were identified, visits to FCCW were scheduled, and the Legal Aid Justice Center, the Washington Lawyers Committee and Wiley Rein LLP, collaborated on scheduling and conducting of interviews of women prisoners at FCCW regarding alleged problems in the receipt of medical care of which they had complained in letters transmitted directly to the Legal Aid Justice Center and in concurrent written grievances to VDOC. At each such interview, confidentiality waivers were procured and medical records were sought and obtained from VDOC and reviewed by counsel. 17 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 23 of 52 Pageid#: 4203

24 Ultimately, to satisfy themselves that the prisoners allegations regarding deficient care that was systemic in nature were a valid basis upon which to commence litigation and seek relief, some 28 women were interviewed, some on multiple occasions, by Plaintiffs counsel between March 2009 and May Attendant to these preliminary interviews and information gathering, Plaintiffs counsel were specifically designating women who seemed like promising prospects to serve as named plaintiff/class representatives and attempting to advise those designees regarding steps they would need to undertake in order to satisfy the exhaustion-of-administrative-remedies requirements of the PLRA. Because FCCW was notoriously erratic in its manner of acknowledging, processing and responding (if at all) to medical grievances, 8 guiding the women through the process of fully exhausting at least one administrative grievance with respect to their receipt of deficient medical care per prisoner concerning an issue upon which Plaintiffs counsel wished to focus in the prospective lawsuit was both challenging and time consuming. Finally, in the Fall of 2011, with Plaintiffs counsel both: (i) satisfied on the basis of their due diligence investigation that a more-than-adequate good faith basis existed to commence an Eighth Amendment class action; and (ii) reasonably confident that the prospective Named Plaintiffs and other putative class members had adequately exhausted pre-suit remedies for purposes of satisfying the PLRA, the VDOC abruptly changed its for-profit medical care contractor, terminating Corizon Health (formerly Prison Health Services, Inc. and its nominal successor, PHS Healthcare), and replacing Corizon with Armor Correctional Health Services, Inc. (Armor), effective as of November 1, This development delayed the commencement of this lawsuit by six months while Plaintiffs counsel, in good faith, waited to see if a change in 8 See Memorandum Opinion, dated November 25, 2014 (ECF Dkt. No. 201), at (addressing defective nature of FCCW s grievance response process). 18 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 24 of 52 Pageid#: 4204

25 the identity of the VDOC s medical care contractor might signal a change in the direction of more and better medical care at FCCW. When those hopes unfortunately proved unfounded, Plaintiffs counsel served pre-suit demand letters upon the VDOC and Armor, respectively, on July 13, When neither prospective Defendant responded to the demand letters, this action was filed on July 24, Upon the filing of the original Complaint for Declaratory Judgment and Injunctive Relief, the Plaintiffs were immediately confronted with a double-barreled challenge to the viability of the lawsuit. The VDOC Defendants filed a Motion to Dismiss the case for failure to state claims upon which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6) (see ECF Dkt. No. 10); by contrast, Armor answered the Complaint, but concurrently served Plaintiffs counsel with a letter asserting that the Complaint was replete with factual efforts and misstatements and threatening the Plaintiffs with a Motion for Sanctions pursuant to Fed. R. Civ. P. 11. As a result, at the very outset of the litigation, Plaintiffs counsel were obligated to invest substantial amounts of time in researching and drafting an Opposition to the VDOC Defendants Motion to Dismiss and an in-depth investigation of medical records and grievances supporting the Named Plaintiffs allegations regarding instances of inadequate medical care in order to respond to Armor s threatened Rule 11 Motion. Plaintiffs counsel served Armor s counsel with an 18-page letter on September 24, 2012; with minor exceptions, Plaintiffs letter comprehensively rebutted Armor s accusation that the Complaint contained a myriad of facts that [are] blatantly erroneous, and Armor abandoned its threats to seek Rule 11 sanctions shortly thereafter. Following the completion of briefing on the Motion to Dismiss and oral argument on October 15, 2012, this Court issued its decision denying the Motion in its entirety on December 11, See ECF Dkt. No. 33. Thereafter, the Plaintiffs, without opposition from 19 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 25 of 52 Pageid#: 4205

26 the Defendants, filed their First Amended Complaint on January 22, 2013, correcting minor factual errors brought to light by Armor and adding an additional individual defendant whose identity had been unknown when the case was initiated. See ECF Dkt. Nos. 34, 35. The Amended Complaint was accepted for filing and deemed filed as of February 6, ECF Dkt. Nos. 38, 39. The Plaintiffs sought to move expeditiously into the discovery phase of the litigation thereafter, but their efforts in this regard were sidetracked when it was suddenly disclosed that the VDOC s contract with Defendant Armor was expiring as of April 30, 2013; in light of this development, Armor filed a Motion to Dismiss, asserting that as of May 1, the Plaintiffs claims against it seeking declaratory and injunctive relief would be moot. ECF Dkt. Nos. 43, 44. Although the Plaintiffs opposed Armor s Motion, it was granted by this Court following the completion of briefing and argument, by Memorandum Opinion dated October 4, ECF Dkt. No. 76. In the meantime, the Plaintiffs maintained their efforts to conduct discovery of the VDOC Defendants, and also moved for leave to file a Second Amended Complaint in order to name Corizon -- the same medical care contractor that had provided medical care at FCCW through the entire period of the Plaintiffs pre-suit due diligence factual investigation until November 1, as a Defendant in light of its replacement of Armor as the VDOC s medical care provider effective May 1, See ECF Dkt. No. 50 (June 26, 2013). Plaintiffs concurrently moved to vacate the existing Scheduling Order and trial date, set as of that time for October 15, 2013, due to the disruption of the orderly progression of the litigation resulting from the VDOC s determination to change medical contractors. ECF Dkt. No Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 26 of 52 Pageid#: 4206

27 The Second Amended Complaint was accepted for filing, and deemed filed, as of July 15, 2013, and an Amended Scheduling Order, resetting the trial date for May 12, 2014, was issued on the same date. See ECF Dkts. Nos Shortly thereafter, newly-named additional Defendant Mark Militana, M.D., Corizon s Medical Director at FCCW, filed a Motion to Dismiss contending that the Second Amended Complaint failed to state any claim upon which relief could be granted against him individually, necessitating further briefing by the Plaintiffs. See ECF Dkt. Nos and Meanwhile, within a matter of mere days after the entry of the Amended Scheduling Order establishing a new trial date, counsel representing the Defendant contractors, Mr. McNelis, who serves in the U.S. Army Reserves, advised the Court that due to newly received orders concerning his military service, the reset trial date of May 12, 2014 would no longer be practicable from his standpoint. See ECF No. 62. The Motion to further continue the trial date was granted on September 13, 2013 (ECF Dkt. No. 70); the next date for trial mutually available to the parties and the Court was September 22, ECF Dkt. No.75. A dispute between the Plaintiffs and the VDOC Defendants regarding their refusal to produce documents responsive to certain of Plaintiffs Document Requests could not be resolved through negotiations; as a result, Plaintiffs filed a Motion to Compel on September 23, ECF Dkt. No. 72. After full briefing and argument, the Plaintiffs Motion to Compel was granted on November 25, 2013 (ECF Dkt. No. 88), and the Plaintiffs were ordered to submit their Petition for attorneys fees incurred in bringing the Motion, pursuant to Fed. R. Civ. P. 37, within 21 days thereafter. ECF Dkt. No The Court denied Dr. Militana s Motion to Dismiss by Memorandum Opinion and Order dated November 15, ECF Dkt. Nos. 84, The Plaintiffs submitted their Petition Regarding Recoverable Attorneys Fees on December 16, ECF Dkt. No. 90. A Memorandum Opinion and Order granting the Plaintiffs recovery in the amount of $15, was issued on April 15, ECF Dkt. 21 Case 3:12-cv NKM Document 227 Filed 10/19/15 Page 27 of 52 Pageid#: 4207

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